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BEFORE THE HON’BLE MAHARASHTRA STATE CONSUMER
DISPUTES REDRESSAL COMMISSION, AT MUMBAI
COMPLAINT NO. 993 OF 2018
Mr. Praveen Ganpat Parab ) … Complainant
Versus
1. M/s. Shivraj Developers )
2. Mr. Milind Sawant )
3. Mr. Gautam Maru ) … Respondents
MEMORANDUM OF WRITTEN ARGUMENTS ON BEHALF OF
THE RESPONDENT NO.3
The Respondent No.3 abovenamed submits this Written
Arguments, praying to state as follows:-
1. It is submitted that the Complainant has filed the captioned
Complaint under section 17 of the Consumer Protection Act, 1986
before the Hon’ble Maharashtra State Consumer Redressal
Commission at Mumbai, against the Respondents for the reliefs as
more particularly prayed for in the said complaint.
2. It is submitted that the Respondent No.3 has filed his Written
Statement in the above complaint and the Respondent No.2
hereby repeat, reiterate, adopt and confirm each and every
statement, submissions and contentions made in his Written
Statement as if the same are specifically incorporated and
reproduced herein seriatim, and re-affirmed by him as forming part
of this present Written Arguments.
3. It is submitted that the Respondent No.3 by profession is an
agent/broker in real estate and he is doing his said business from
his residential address. It is submitted that there is absolutely no
privity of contract and/or any such undertaking given by the
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Respondent No.3 either in favour of the Complainant and/or in
favour of the Respondent No.1/Developer at any point of time.
4. It is submitted that the Complainant was in need and in
search of a good flat and he had approached the Respondent No.3
and made a request to help him in search for a good flat. It is
submitted that the Respondent No.3 introduced the Complainant
to the Respondent No.1/Developer and accordingly, the
Complainant had seen the brochure and decided to book one flat.
It is submitted that the Complainant and the Respondent
No.1/Developer had a detailed discussion in the presence of the
Respondent Nos. 2 & 3 with regard to the consideration of said flat
and the consideration was arrived at a total lump-sum amount of
Rs.40,00,000/- (Rupees Forty Lakhs Only). It is submitted that the
Complainant booked the flat for total consideration of
Rs.40,00,000/- (Rupees Forty Lakhs Only) in the project of the
Respondent No.1/Developer. It is submitted that the Respondent
No.3 have not taken any such cheque of Rs.6,00,000/- (Rupees Six
Lakhs Only) and cash of Rs.2,51,000/- (Rupees Two Lakhs Fifty One
Thousand Only) from the Complainant at any point of time.
5. It is submitted that the Complainant had booked (purchased)
a flat bearing Flat No. 1802 on the 18 th Floor in the project known
as “Kalash Apartment”, Kandivali (West), Mumbai, admeasuring
433.99 sq. ft. super area situated at CTS No. 6A(Pt), 467 (Pt),
468 (Pt) and 533 (Pt) of village Malvani Bhabrekar Nagar,
Kandivali (West), Mumbai: 400067 of Revenue Village in the
registration district and sub-district of Mumbai and Mumbai
Suburban, for total sale consideration of Rs.40,00,000/- (Rupees
Forty Lakhs Only). It is submitted that the Complainant had given
cheque and cash amounting to Rs.8,51,000/- (Rupees Eight Lakhs
Fifty One Thousand Only) directly to Respondent No.1/Developer
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and as such, the Complainant can demand for refund of the said
amount as well as compensation from Respondent No.1/Developer
and not from the Respondent No.3 under any circumstances.
6. It is submitted that the Respondent No.3 have not received
the alleged legal notice dated 11/09/2018 from the Complainant’s
advocate for alleged deficiency in service and asking for execution
of agreement for sale. It is submitted that the question of issuing
any such legal notice to the Respondent No.3 does not and cannot
arise at all as there is no privitry of contract and/or any such
undertaking given by the Respondent No.3 in favour of the
Complainant at any point of time. It is submitted that when there is
no privity of contract between the Complainant and this
Respondent No.2, definitely the Respondent No32 is not bound and
liable to pay the alleged claim amount and compensation as
claimed by the Complainant.
7. It is submitted that the principle that when an obligation is
founded upon a contract the assent of a person to be bound is at
the root of the matter and is indispensable as the third party is not
an assenting party he cannot be called upon to bear the burden of
the contract. It is a trite principle of law that a person cannot be
subjected to the burden of a contract to which he is not a party.
The principle is firmly established that contractual liabilities cannot
be imposed upon a party who is not a privy to the contract.
8. It is submitted that there was no privity of contract between
the Complainant and this Respondent No.3 and therefore the
Complainant had no right to sue this Respondent No.3 for the
amount claimed in the said complaint.
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9. It is well established principle of law that a party who is not
privy to the contract, cannot sue for enforcement of the said
contract and the said principle has been laid down by the
English courts from time to time which has been appreciated by
the Indian Courts.
10. In view of the facts and circumstances and in the interest of
justice, equity and good conscience, it is respectfully and humbly
prayed that this Hon’ble Commission may be pleased to take into
consideration the Written Arguments of this Respondent No.3 and
dismissed the complaint of the Complainant and thus render
justice inter alia on the aforesaid grounds.
Place : Mumbai.
Date : ___/08/2019.
[MKS LEGAL ASSOCIATES]
ADVOCATE FOR THE RESPONDENT NOS. 2 & 3
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BEFORE THE HON’BLE MAHARASHTRA
STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, MUMBAI
COMPLAINT NO. 993 OF 2018
Mr. Praveen Ganpat Parab
… Complainant
V/s
M/s. Shivraj Developers & Ors.
… Respondents
MEMORANDUM OF WRITEN
ARGUMENTS ON BEHALF OF
THE RESPONDENT NO.3
Dated this _____ day of August, 2019
MKS LEGAL ASSOCIATES
Advocate for Respondent Nos. 2 & 3
Off.: 49/493, MHB Colony, 1st Floor,
Opp. Siddhi Sai Mandir,
Mahavir Nagar, New Link Road,
Kandivali (West),
Mumbai: 400067.
Contact No. +91-9004040633.
Email: [Link]@[Link]
Web: [Link]
